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February 18, 2008

Three brief queries about capital appellate briefing realities

Prior posts about the Penry case and death penalty costs have me again interested in doing some arm-chair empiricism about the time, money and energy that gets devoted to litigating capital cases. Specifically, I'd like to estimate the number of appellate briefs that have been filed in three distinct death penalty settings. So, here are my queries:

1. How many appellate briefs were filed (in toto counting all parties and amici briefs filed in all direct and collateral appeals) in the Johnny Paul Penry case in Texas?

2. How many appellate briefs have ever been filed, in toto, concerning lethal injection protocols in courts nationwide?

3. How many appellate briefs have ever been filed, in toto, concerning death penalty cases in California?

I ask these related, but quite distinct, question for various reasons:

question 1 is focused on the amount of time, money and energy devoted to appellate litigation concerning the punishment of a single defendant whose guilt was never in doubt;

question 2 is focused on the amount of time, money and energy devoted to appellate litigation concerning how to administer the death penalty, not the merits of the punishment itself;

question 3 is focused on the amount of time, money and energy devoted to appellate litigation in one jurisdiction which, as detailed in this article, is actively trying to figure out why its death penalty system seems so badly broken.

I would be grateful to anyone who takes a little time to do some real research to provide educated guesses for all these questions. Without doing any research, I will throw out some ballpark numbers. I would guess: 500 appellate briefs were filed in the Penry litigation; 1500 appellate briefs have been filed concerning lethal injection protocols; and 10,000 appellate briefs have been filed in capital cases in California.

I am sure these guesses are way off, but I'd love to hear other guestimates from readers in the comments.

Comments

I think you're very low on the number of lethal injection briefs as I assume that counsel for most death row inmates are raising this issue in pretty much every case, in every state, at every stage of the proceedings. My guess is 5,000.

But I think you're way over on the number of California cases. I think there are less than 700 death row inmates in California and there have not been very many executions there. These cases go straight to the California Supreme Court so you don't have briefs to intermediate appellate courts. Even with supplemental briefing and amicus briefs, it would be a rare case that has more than 10 briefs - unless you're also counting pleadings in federal district court and briefs to the Circuit, but many California cases have not yet hit these stages because of delays in state court. My guess, and it's just that, is 5,000 briefs.

Here's my brief count on Penry: 6 briefs in 3 direct appeals to the Court of Criminal Appeals of Texas (from the 1980, 1990, and 2002 convictions). There is no intermediate appellate court for capital cases in Texas. 6 cert. petitions and BIOs from those 3 decisions, including the State's appeal from the most recent CCA decision. 4 briefs in 2 appeals to to the 5th Circuit from the denial of federal habeas relief. Penry did not make it to federal habeas the 3rd time around, because his death sentence was reversed on direct appeal. 4 cert. petitions and BIOs from the 2 5th Circuit decisions. 4 merits briefs in those 2 Supreme Court proceedings. 3 additional amicus briefs in those proceedings. That's 27 appellate briefs. Assuming that a few uncounted amici weighed in at the 5th Circuit or the CCA at some point during these proceedings, we're still well under 40. 500 is clearly far beyond any reasonable estimate, even with the long history of the case. I'll admit that 40 briefs is a lot, but it clearly did not cost a billion dollars to litigate this case.

I have been counsel of record for many years in the Penry case, FYI.

Posted by: | Feb 19, 2008 10:44:14 AM

How could you only have 6 briefs in three direct appeals to the court of criminal appeals? Are you not counting reply briefs?

Posted by: Confused | Feb 19, 2008 2:21:49 PM

Also, I counted from Westlaw 20 amicus briefs in the two SCOTUS Penry cases at the merits stage Also, how about en banc requests in the Fifth Circuit? You've convinced me 500 is too high, but 40 is clearly much too low.

Posted by: Doug B. | Feb 19, 2008 3:33:40 PM

If I add 20 amicus briefs (which I did not count thoroughly enough) to the 27 counted briefs, add a rehearing petition for each 5th Circuit appeal and a requested rehearing response from the 1st appeal (responses to rehearing petitions are prohibited in the 5th Circuit unless ordered), I count 50 briefs. If I add 2 reply briefs for the 5th Circuit appeals and 3 reply briefs in the Supreme Court on direct appeal, 2 for the 2 cert. petitions off federal habeas, and 2 merits replies for the 2 Supreme Court proceedings, I get 59. Reply briefs are not permitted in the Court of Criminal Appeals -- the appellee's brief is considered the "reply." So, yeah, 40 was low and about 60-70 is probably more accurate, adding in a few more as a hedge. So I wouldn't consider my original estimate that low, all things considered.

Posted by: | Feb 19, 2008 7:25:32 PM

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